guest: they will do that. same thing happened in new mexico and though lost. but our judge napolitano says it i don t turn out differently in connecticut. judge napolitano: the legislature can make it the public policy the death penalty is available for jury and judge or not available for jury and judges but they cannot say, it is not available in the future but it was available and still is available for those who here now. reporter: can you execute someone today who could not be executed for the same rhyme in the future. it could go to the supreme court of the united states. shepard: thank you. a grand jury indicted the jetblue captain who had a meltdown mid-flight. the guy would shouted things including bring down this plane, al qaeda is here. you remember the video, the passengers tackled the can t when he ran through the cabin